Citation Nr: 21009035 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 19-16 367 DATE: February 18, 2021 ORDER The request to reopen the claim of entitlement to service connection for tinnitus is granted. The request to reopen the claim of entitlement to service connection for a bilateral hearing loss disability is granted. The request to reopen the claim of entitlement to service connection for open angle glaucoma, with diabetic retinopathy and right eye blindness is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a right hand tremor is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a right eye disability is remanded. FINDINGS OF FACT 1. In a February 2015 rating decision, the Veteran was denied service connection for tinnitus, a bilateral hearing loss disability, and open angle glaucoma, with diabetic retinopathy and right eye blindness on the basis that evidence did not reflect his disabilities were related to service. The Veteran’s right eye blindness was also denied on the basis that the evidence did not reflect his pre-existing disability had worsened in service. The Veteran appealed the issues of service connection for a bilateral hearing loss disability and right eye blindness but did not appeal service connection for tinnitus (despite the issue later appearing in a statement of the case (SOC)). He did not file a substantive appeal after an SOC was issued in September 2016. While new evidence, such as VA treatment records, was received within one year of the February 2015 rating decision, it was not material because it did not relate to the Veteran’s tinnitus to his service. Therefore, the February 2015 rating decision is final. 2. In a November 2016 private opinion, the Veteran’s physician opined that the Veteran’s tinnitus and hearing loss disability were related to the Veteran’s service. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, the lack of a relation to service. 3. In a December 2016 statement, the Veteran reported that his vision was aggravated because he had to focus on a screen as a sonar man during service. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, the lack of a relation to service. 4. The Veteran’s tinnitus was incurred during service. 5. The Veteran’s right hand tremors were incurred during service. CONCLUSIONS OF LAW 1. The February 2015 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 19.52, 20.1103 (2020). 2. The evidence received since the February 2015 rating decision, which denied service connection for tinnitus, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 2. The evidence received since the February 2015 rating decision, which denied service connection for a bilateral hearing loss disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 3. The evidence received since the February 2015 rating decision, which denied service connection for open angle glaucoma, with diabetic retinopathy and right eye blindness, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 5. The criteria for entitlement to service connection for right hand tremors have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1962 to February 1966, with additional service in the Navy Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision by the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. For the reasons discussed above, the requests to reopen claims of entitlement to service connection for tinnitus, a bilateral hearing loss disability, and open angle glaucoma, with diabetic retinopathy and right eye blindness have been reopened. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for tinnitus. The Veteran reported having tinnitus and asserted that his disability was related to working as a sonarman during active duty service. See, e.g., December 2016 statement. While his DD214 does not list a military occupational specialty, it states that he went to sonar school. Personnel records also reflect that he worked with sonar. See, e.g., November 1964 personnel records. He testified that he wore headphones all the time while on duty. See February 2021 Board hearing. Given the nature of the Veteran’s service and after resolving reasonable doubt in his favor, the Board finds that he had noise exposure while on active duty. The Veteran testified that he had ringing in the ears during service and his symptoms continued since that time. See February 2021 Board hearing. In November 2016, his physician opined that his tinnitus was related to constant noise while being assigned to radar listening stations. While the private opinion may not have an adequate rationale, after considering it with the Veteran’s lay statements regarding symptoms since service, the Board finds that the Veteran’s tinnitus was incurred during service. As a result, service connection is warranted. 2. Entitlement to service connection for a right hand tremor. The Veteran has repeatedly asserted that his right hand began to have a tremor during service. See, e.g., February 2021 Board hearing. Service treatment records (STRs) corroborate the Veteran’s reports and reflect that physicians could not determine the cause of his hand tremors at that time. See, e.g., June 1965 STRs. During an August 2017 VA examination, the Veteran reported that his hand tremors went away in service and did not return until 2008. However, during his February 2021 Board hearing, he clarified that his tremors came and went after service and became consistent more recently. The Board assigns more probative weight to the Veteran’s testimony regarding continuous symptoms rather than his report to the August 2017 VA examiner because the undersigned had the opportunity to observe the Veteran during his testimony at the hearing and finds him to be credible. The August 2017 VA examiner opined it was less likely than not that the Veteran’s right hand tremors were related to service because he had reported that he did not have symptoms for nearly 50 years after service. Because the Board has assigned more probative weight to the Veteran’s Board testimony that he had symptoms after service but that such symptoms were not consistent, the August 2017 VA opinion is inadequate because it is based on an inaccurate factual premise. As a result, the opinion is given no probative weight. In January 2017, a private physician reviewed the Veteran’s STRs and opined that such records “suggest” that his essential tremors date back to that time. Although the opinion is inadequate because it is speculative, when considered together with STRs and the Veteran’s report of symptoms continuing since service, the Board finds that his right hand tremors were incurred during service. As a result, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability. VA has specific criteria as to what constitutes a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Although a private physician diagnosed a bilateral hearing loss disability, see November 2016 private opinion, the evidence is inadequate to determine whether the Veteran’s disability meets VA’s criteria. Thus, remand for an examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for a right eye disability. Refractive error of the eye is not a disease that can be service-connected. 38 C.F.R. § 3.303(c). Although both the Veteran’s Reserves enlistment examination and his active duty medical examination reflect that he had defective vision in his right eye that could not be completely corrected, see April 1960 enlistment medical examination and February 1962 active duty medical examination, he cannot be service-connected simply for poor eyesight, regardless of whether his visual acuity worsened during active duty service. The Veteran asserts that his right eye problems are related to vision difficulties while working as a sonarman during service. See December 2016 statement. STRs also reflect a report of burning in his eye. See April 1965 STRs. A February 2015 VA examiner diagnosed open angle glaucoma, diabetic retinopathy, and right eye blindness. However, while opining that the Veteran’s disabilities were less likely than not related to service, the examiner discussed that the Veteran had longstanding amblyopia in the right eye that was documented prior to 1963. There is no notation of amblyopia on the active duty medical examination. See February 1962 STRs. It is unclear whether the Veteran currently has amblyopia or whether such disability pre-existed service. Moreover, the examiner merely stated that diabetes and glaucoma are genetic conditions not affected by environmental work conditions, without discussing whether such disabilities are related to service. As a result, remand for a new examination is necessary. Finally, the Board notes that the Veteran submitted a private medical release in March 2016 that did not contain a signature. After the Agency of Original Jurisdiction (AOJ) notified the Veteran of this defect, he submitted a copy of the same private medical release with a signature at the bottom of the first page, but the AOJ still rejected the private medical release. See March 2017 correspondence. On remand, the AOJ should provide the Veteran the opportunity to submit a new medical release—with a valid signature—so the AOJ can attempt to obtain private treatment records. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from March 2019 to the present. 2. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received, to include for his right eye disabilities. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. After the development in the first two directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any hearing loss disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: If a hearing loss disability is diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. 4. After the development in the first two directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any right eye disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all right eye disabilities present during the appeal period (from December 2016). The examiner must discuss if the Veteran has amblyopia. (b.) Did any of the Veteran’s current right eye disabilities (other than refractive error), such as amblyopia, clearly and unmistakably pre-exist service? Please explain why. The correct standard must be used. Using the at least as likely as not standard is insufficient. (c.) If there is clear and unmistakable evidence that the Veteran’s right eye disability (other than refractive error) pre-existed service, is there clear and unmistakable evidence that the disability was not aggravated by service? Please explain why. The correct standard must be used. Using the at least as likely as not standard is insufficient. (d.) For any right eye disability that did not clearly and unmistakably pre-exist service, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran’s reports of eye strain as a sonarman and STRs reflecting complaints of burning. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.